A 12 year wait for justice brought to a virtual naught for the families of victims of Pathribal killings. The last beacon of hope for these families refused to show them any light at the end of this ordeal.

On the Pathribal fake encounter killings, a SC bench recently pronounced ‘if the army authorities were not keen on court-martial proceedings, then the CBI can seek sanction from the Centre for prosecution of the army officers.’ The SC further gave the army eight weeks to decide whether it will hand over the case to CBI or it would do a court martial instead. This verdict even after CBI had convincingly unraveled the fake encounter of civilians by Army officers.

The ‘if the army’ and ‘else’ ‘can seek sanction from the Centre’ have both been mired in uncertainty in the past also. Between the ‘if’ and ‘else’, justice in Kashmir has already been held hostage for far too long and this 'if' 'else' should have been seen in the light of past incidents in Kashmir.

The ‘else’ query : As per the Ministry of Defense, Government of India (in response to RTI query) only one army man has been prosecuted in Jammu and Kashmir during past 22 years by them (MoD) against the 44 cases that were received for sanction of prosecution from 1990 to 2011. That means sanction was not granted in almost 98% of recommended cases (97.73 %). In all the cases of rights abuses the controversial AFSPA was invoked to shield the accused. And all these 44 cases are the ones forwarded by the state government for sanction for prosecution from MOD against rights abuses in Kashmir. The number of cases filed against the armed forces could be much higher on ground. The ‘if’ else ‘can seek sanction from the Centre’ argument clearly failing here.

The ‘if’ query : There have been many incidents where army soldiers were accused as violators but no cases had been framed. For one such incident for the ‘Kunanposhpora mass rape’ Army personnel were accused of mass raping women of this village in the intervening night of February 23 and 24 in 1991; the State Human Rights Commission (SHRC) on 19th October 2011 asked the state government to start a fresh probe into the case relating to this alleged mass gang rape. Had Kunanposhpora been a village in mainland India, would New Delhi have adopted the same stance that it adopted for this Kashmir village? For India, between ‘us’ and ‘them’ lies the difference.

In another incident in 2009, three Army officials were found to be involved in the killing of civilians in Bomai (February 21 2009) and the CM had gone on record stating “Exemplary punishment will be handed over to the Army men, if found guilty, in the killing of two civilians in north Kashmir Bomai village” (IE 5th March 2009). Although the inquiry commission clearly pointed out that “(the) troopers killed two civilians without any provocation” and “the Army action was not only disproportionate but breached all operational procedures”, there has been no sanction granted by the centre for prosecuting the accused soldiers in the court. Both ‘if’ and ‘else’ failed here because the killing happened in Kashmir not in mainland India.

While the Pathribal fake encounter killings were seen as a follow-up of the Chattisinghpora massacre in South Kashmir, where 35 people were killed, the Machil fake encounter followed nothing, plainly an attempt to earn rewards and career progression by killing innocents and labeling them as militants. The Machil fake encounter seemed to have been executed in total obscurity, killings for personal gains and rewards. In both the cases innocent civilians were rounded up, taken to remote locations and killed in cold blood; the excuse of ‘the official discharge of duties in good faith’ clearly failing. How can the state or the state arm put forth an argument of ‘acted in good faith’ for clear murder and attempts at destruction of evidence post murder?

Let us remember that the bodies of civilians killed in the Pathribal fake encounter had been reportedly hurriedly burnt and mutilated after they had been killed, to destroy the evidence (CBI report).

Do actions of pre meditated murder for personal rewards fall under a legal blanket, the cover of ‘acted in good faith’? This also what the Additional Advocate general of J&K state submitted before the High Court (in Feb 2012) when pleading the Machil fake encounter case “The writ petitioners being respectable army officers should have protected the people instead of killing them in fake encounter just to gain rewards and promotions, which are unfortunately being conferred without any verification”.

An institution that evicted no interest for so many years to fairly court martial the accused in Pathribal killings would surely search for reasons to avoid it further now. Ironically even CISF had been seeking immunity in Kashmir under AFSPA after they had killed an innocent teenager in January 2012. And sadly February 2012 followed with the killing of a 20 year old civilian by the soldiers of 32 RR at his home in Rafiabad of north Kashmir Baramulla; AFSPA again came to their rescue.

For the common Kashmiri the refusal of New Delhi to prosecute its men involved in heinous crimes in Kashmir is further seen as an ‘care damn not’ about Kashmiri’s, its hold in Kashmir is seen to extend and run purely because of its military might. The difference between ‘our own people’ and ‘them Kashmiri’s’ is exactly why New Delhi has been reluctant to extend AFSPA to Maoists affected areas where a bloody conflict between the state forces and Maoists has been on the increase. In fact Defense Minister A K Anthony is earlier been reported as saying “the government does not intend to use it (Army) against Maoist activities” (2nd Nov 2009).

Saving its errant and criminal representatives in Kashmir surely does no good to India, except for further fueling the extreme sense of alienation between Kashmir and India.

In Feb, 2012 Supreme Court had cleared that AFSPA cannot be invoked in case of rape and murder “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand,” (IE Feb 04 2012). However in the recent Pathribal ruling the same case of ‘fake encounter cold blooded murder’ was referred to AFSPA and prosecution reference send to either a military court martial or centers approval for prosecution, both of which have seen a state burial over the past decades in Kashmir.

Like the ‘our own people’ and ‘them Kashmiri’s’ in Indian policy and approach, there seem to be two different sets of justice here; one for the humans of India and the other for the ‘them Kashmiri’s’.

The wide between New Delhi and Kashmir is only becoming seemingly irreconcilable by these different standards where both ‘if’ and ‘else’ are beyond the reach of Kashmiri’s.